On
September 5, 2017, a Clerk's Judgment was entered in this
case following a six-day jury trial. The jury awarded $129,
211, 337.00 in actual damages and $1, 300, 000.00 in punitive
damages. Neither party has moved for a new trial.

Pursuant
to Fed. R. Civ. Pro. 59(d), the Court now vacates the
judgment entered on September 5, 2017 and sua sponte
orders a new trial. Rule 59(d) provides, “No later than
28 days after the entry of judgment, the court, on its own,
may order a new trial for any reason that would justify
granting one on a party's motion…. [T]he court
must specify the reasons in its order.” See also
Peterman v. Chicago R.I. & P.R. Co.,493 F.2d 88, 91
(8th Cir. 1974) (the time in which a court has the
power to order a new trial on its own initiative is
restricted to the time specified in Rule 59(d)). Generally, a
district court may grant a new trial when the first trial
resulted in a miscarriage of justice, through a verdict
against the weight of the evidence, an excessive damage
award, or legal errors at trial. Trickey v. Kaman Indus.
Techs. Corp., 705 F.3d 788, 807 (8th Cir.
2013). The Court concludes that the amount of damages awarded
by the jury is against the weight of the evidence.

Jury
Instruction 14 directed the jury as follows:

You must award Plaintiffs such sum as you may find to be the
fair market rental value Plaintiffs could have obtained from
third parties for a commercial telecommunications easement on
the Plaintiffs' property from January 21, 2005 until the
date of this trial.

The phrase “fair market rental value” as used in
this instruction means the price which a commercial
telecommunications easement would bring when offered for rent
by one willing but not obliged to rent and when rented by one
willing or desirous to rent but who is not compelled to do
so.

In determining the fair market rental value of a commercial
telecommunications easement on Plaintiffs' property, you
may consider evidence of the value of a commercial
telecommunications easement, including comparable rentals,
the highest and best use to which the Plaintiffs'
property may be applied or adapted, the value of the property
if freely rented on the open market, and generally accepted
appraisal practices.

You may give all evidence the weight and credibility you
believe are appropriate under the circumstances.

Thus,
the jury was required to determine the fair market rental
value of the easement that Plaintiffs could obtain from a
third party. Plaintiffs' expert, Dr. Kilpatrick,
presented evidence that the fair market rental value of such
an easement would be $129, 211, 337.00. The jury obviously
relied on that evidence to reach a verdict in exactly the
same amount. However, Defendants presented evidence,
including their actual records, to show costs the Defendants
incurred to operate their commercial telecommunications
company. Those costs were nearly equal to the income
purportedly earned by the Defendants. While the Court is
aware that there could be a dispute about the allocation of
costs between the two Defendants and the actual amount of
profits the Defendants in fact earned, even when viewed in
the light most favorable to the verdict, the record does not
support a finding that a third party or Defendants would be
willing to rent an easement from the Plaintiffs in excess of
$129 million, absent a profit sufficiently clear to offset
not only the $129 million in rent (much less the amount to
actually purchase the easement, as calculated by dividing
rental by Dr. Kilpatrick's seven percent conversion
factor, see Doc. 867, p. 91), but also to offset the
reasonable operating costs of their telecommunications
company.

The
Court's finding that the verdict is against the weight of
the evidence is further justified by its conclusion that it
erred in admitting evidence of revenue estimates for the
Defendants from the 1990s. At a minimum, the revenue numbers
admitted should have been limited to the time period of
Plaintiffs' claim. Further, for purposes of actual
damages, it should have been limited to actual revenue
generated, not projected revenue. Also, it is possible that
the jury was confused by the admission of all the revenue of
the Defendants' commercial telecommunications company
rather than revenue limited to or closely related to the
trespass at issue in this case. Finally, the Court concludes
in hindsight that it erred by not including in Instruction
14, a direction to the jury to consider commercial viability
when determining what a willing buyer would pay for such an
easement.

To be
clear, both the actual and punitive damages awards reflected
in the Clerk's Judgment of September 5, 2017 are hereby
vacated. Instruction 20 directed the jury to consider
“[w]hat amount of punitive damages, in addition to the
other damages already awarded, ” was needed to punish
and deter the Defendants. Because the actual and punitive
damages awards were related, and the amount of actual damages
awarded by the jury was against the weight of the evidence,
both must be vacated.

The
Court is aware of the resources that have been invested in
this case by the parties and the judicial system.
Nonetheless, the jury's award simply makes no sense in
light of the record as a whole. The Court reached that
conclusion at the close of trial and having now carefully
reviewed the transcript of trial, remains convinced the
verdict cannot stand. The Court vacates the Clerk's
Judgment of September 5, 2017 and orders a new trial.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Defendants&#39;
Motion for Judgment as a Matter of Law, Doc. 846, remains
pending and will be addressed in due course as appropriate.
See Goldsmith v. Diamond Shamrock Corp., 767 F.2d
411, 415 (8th Cir. 1985) (the pendency of a motion
for judgment notwithstanding the verdict does not toll the
running of the period specified under Rule 59(d) in which a
court ...

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